Administration’s Nominee for CIA Watchdog Allegedly Misled Congress

ByJennifer Valentino-DeVries, ProPublica |November 2, 2017

Complaints by two former CIA employees against Christopher Sharpley are pending, but he testified he was “unaware” of them.

By Jennifer Valentino-DeVries, ProPublica

Two former CIA employees say the Trump administration’s nominee to be CIA inspector general misled Congress last month when he testified he was unaware of pending complaints they had filed against him.

The allegations against nominee Christopher Sharpley, the acting inspector general, have prompted concerns among both Democratic and Republican senators and could delay his confirmation. They also expose a rift between the CIA inspector general’s office and the oversight office for all intelligence community programs. More broadly, they raise questions about how well intelligence agencies are implementing policies that were introduced to protect whistleblowers after former NSA contractor Edward Snowden was charged with espionage for leaking classified documents.

Lawyers for Andrew Bakaj and Jonathan Kaplan, both ex-employees of the CIA inspector general’s office, sent letters to the Senate in the past two weeks, saying that Sharpley is one of the CIA officials named in pending complaints they filed in 2014 and 2015. Sharpley “deliberately misled Congress during his sworn testimony,” Kaplan’s attorneys wrote in their letter.

The complaints, included as attachments to the letters, allege Sharpley and other senior officials violated whistleblower safeguards by retaliating against the staffers for reporting wrongdoing in the inspector general’s office. Bakaj’s security clearance was suspended and he was placed on administrative leave, and Kaplan received a warning letter that ultimately resulted in the loss of his security clearance.

During Sharpley’s confirmation hearing before the Senate Intelligence Committee on Oct. 17, California Democrat Dianne Feinstein cited a published report that showed there were pending complaints against him. “What do you know about this?” she asked.

“If there are complaints, if there are investigations out there, I’m unaware of it,” he said.

Only five days earlier, the Department of Homeland Security’s inspector general, which is investigating Bakaj’s complaint, had asked to interview Sharpley in the matter and been told he would be available after his testimony on Capitol Hill, according to a letter sent by Oregon Democrat Ron Wyden and Iowa Republican Chuck Grassley to Senate Intelligence Committee members. Wyden is on the committee; Grassley isn’t, but has long championed whistleblower protections. The Wyden letter also says the investigating attorney for DHS frequently visited the CIA inspector general’s office this year to review relevant documents.

“In light of these facts, we believe Mr. Sharpley should explain in detail precisely how it is possible that he could have been unaware of any open investigations against him at the time he testified,” the senators wrote.

Kaplan said his complaint, which is being handled by the intelligence community inspector general, is also ongoing. That office did not immediately respond to a request for comment.

It is unclear whether Sharpley is a primary focus in either investigation, although he is named in both complaints. In written comments to the Intelligence Committee prior to his testimony, Sharpley wrote that he was “aware of complaints made against the CIA OIG and previous OIGs where I was employed, but I am not aware of any where I was the subject.”

The CIA, which is handling questions for Sharpley, declined comment on whether there are any ongoing complaints or investigations regarding him. “Mr. Sharpley has had a sterling 5-year career at CIA and there have never been any findings of wrongdoing or misconduct of any sort by Mr. Sharpley during his tenure here,” said CIA spokesman Ryan Trapani in an email. Sharpley joined the agency as deputy inspector general in 2012 and was made acting inspector general in 2015.

This is the first time details of the complaints against the CIA inspector general’s office have been reported and the whistleblowers have been identified. The existence of pending complaints against Sharpley was reported by Foreign Policy magazine and the Project on Government Oversight, a nonprofit group.

The documents from Bakaj and Kaplan reveal a conflict between the CIA inspector general’s office and the Office of the Intelligence Community Inspector General. Established in 2010, the latter considers appeals of decisions made by the inspector general offices of the various intelligence agencies and coordinates broad investigations.

Both men, who were special agents/investigators at the CIA inspector general’s office, say their supervisors retaliated against them after they cooperated with inquiries into the office in 2014. Kaplan provided information about withholding of material evidence in a criminal case and was interviewed by staffers for congressional oversight committees, according to his complaint.

Bakaj, who is also an attorney and specialized in whistleblower reprisal investigations, wrote in his complaint that he spoke with an investigator from the intelligence community’s inspector general about improper whistleblower investigations at the CIA. He also wrote that he was instrumental in directing and protecting people coming forward with information about misconduct in the same case in which Kaplan cooperated.

“The CIA whistleblowers who suffered reprisal were trying to report some really serious criminal activity within the inspector general’s office — the fabrication of evidence in a criminal case where the people who did it were never punished,” said John Tye, an attorney who represents both men and is a founder of the nonprofit Whistleblower Aid law firm.

As a CIA official, Bakaj had authored the CIA’s rules of whistleblower protection and reprisal investigation in 2013 and 2014. Those rules say, among other things, that senior management can’t change the security clearance of employees because they assist in investigations. In his case, he contends, those policies weren’t followed.

Less than a month after he cooperated with the investigation, his security clearance was suspended and he was placed on administrative leave. He left the agency about a year later.

Bakaj wrote in his complaints that he was told the reason for his punishment was that he had mishandled classified information when he cooperated with the intelligence community inquiry and that he had misused computers by searching his department’s database for terms related to the inquiry.

Senior officials told him there was a “war” between the CIA’s inspector general and the intelligence community inspector general, and that CIA IG staff were “prohibited from cooperating” with the broader agency, Bakaj wrote.

“The situation within CIA OIG is a systemic mission failure that must be corrected,” he wrote.

Like Bakaj, Kaplan alleges he ultimately lost his security clearance after searching for terms in a computer system. He conducted the search in order to facilitate a meeting with the House Intelligence Committee staff about misconduct at the CIA inspector general’s office, he wrote.

Bakaj’s matter was referred to the Department of Homeland Security’s inspector general’s office because intelligence investigators had a conflict of interest. The CIA IG’s office had originally reviewed his complaint against itself and sent Bakaj a brief letter saying it had determined the matter “did not satisfy the requirements for a whistleblower retaliation claim,” but he appealed that decision to the intelligence community IG. DHS did not respond to a request for comment about the complaint.

Rob Johnson, former deputy inspector general of the intelligence community who left the office this part March, said it was highly unusual for an inspector general to review a complaint against its own office. “An IG shouldn’t be investigating themselves,” he said. He added that the intelligence community inspector general’s office had encountered pushback from other intelligence IGs soon after it was formed in 2010. “It gave us authority over other IGs’ backyards, and that was going to be met with some kind of resistance,” he said.

Kaplan said he was “deeply concerned” about Sharpley’s nomination and that the office under his direction was “toxic, oppressive and totally dysfunctional.” The CIA declined to comment on his characterization. Bakaj did not comment beyond his written submission to the Senate, citing the pending investigation.

Kaplan called in his letter to the Senate for Sharpley to be investigated for perjury to Congress, but experts said such cases are rare because they require showing that people knowingly lied.

“It’s uncommon for perjury to be charged at all and even less common for perjury to be charged for testimony before Congress,” said Jennifer Rodgers, executive director for the Center for the Advancement of Public Integrity at Columbia Law School. “It’s very hard to prove.”

Trapani, the CIA spokesman, said the agency is looking forward to Sharpley’s quick confirmation.

However, Sen. Grassley said the Senate should have more answers about the treatment of whistleblowers in the CIA inspector general’s office before it votes. “Any nominee being investigated for whistleblower reprisal should have to satisfactorily address concerns about their actions, and any investigation should have to be completed before nominees receive a vote,” he said in a statement.

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